Commerce Ignored Instructions to Reconsider Benchmark Picks in Chinese CVD Case, Exporter Argues

The Commerce Department erred on remand when it stuck by its benchmark picks for the land program and the aluminum plate, sheet and strip program in a lawsuit on the 2016-17 administrative review of the countervailing duty order on aluminum foil from China, Chinese aluminum exporter Zhongji said in its Sept. 18 remand comments to the Court of International Trade (Jiangsu Zhongji Lamination Materials Co. v. U.S., CIT # 21-00133).

Zhongji claims that Commerce shouldn't have continued to rely on Trade Data Monitor (TDM) data over that of the Commodities Research Unit (CRU) and failed to adequately explain its decision to do so despite the remand order. Additionally, Zhongji argued that Commerce also failed to explain its practice of selecting the contemporaneous land benchmark and its comparability analysis in selecting the Coldwell Banker Richard Ellis (CBRE) Asian Marketview Report for Thailand Industrial Land Report instead of Zhongji’s proposed benchmarks.

Zhongji had argued that the TDM info went overboard because it included a majority of subcategories not used as foil stock and because it did not distinguish between alloys, the majority of which are not used in foil production. Commerce ignored the "severe overbreadth" of using TDM information and, on remand, failed to explain how it more closely reflected Zhongji's sheet purchases than did the CRU data advocated by Zhongji, despite the remand order expressly requiring further explanation. Zhongji said that the CRU data was the only reasonable benchmark choice because it was product-specific.

The department wrongly claimed that if it had relied only on CRU data, it would have deviated from tier-two world market benchmark prices. However, Commerce has "frequently used data short of global coverage as tier two world market benchmarks," Zhongji said. The department "fixated on the imperfection" in the CRU data while simultaneously ignoring issues with the TDM data.

The remand order directed Commerce to explain further or reconsider its "purported practice to select data sources that correspond most closely to the point in time at which land use rights were purchased” and its use of the 2010 CBRE Report instead of Zhongji’s preferred 2016 to 2018 CBRE Reports.

Zhongji argued that Commerce failed to adequately explain how it could have a “practice” of using data sources that correspond to land use when it put the 2010 report on the record before knowing Zhongji’s land purchase dates and why it has relied on the same report even when land purchase years do not correspond more closely to 2010, citing the 2019 review of Solar Cells from China.

The CBRE report from 2010 was an "extremely outdated source" for the period of review years of 2017-2018, Zhongji said. Commerce unlawfully continued to rely on an "obsolete" 2007 case to support an economic comparability analysis of the 2010 CBRE report, Zhongji said.

In a March opinion, the trade court remanded Commerce's data picks used to calculate the aluminum plate program benchmark, saying that the agency did not adequately explain its pick of the TDM data and failed to adequately explain its decision to not use London Metal Exchange data, which was part of the CRU report (see 2303300032). In its August remand results, Commerce stuck by its benchmark choices (see 2308070036).